Alexander Fitzgerald v Kalka Palms Hotel T/A Pub

[2018] FWC 3564

[2018] FWC 3564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Fitzgerald
v
Kalka Palms Hotel T/A Pub
(U2016/14411)

COMMISSIONER BISSETT MELBOURNE, 19 JUNE 2018

Application for relief from unfair dismissal.

[1] On 4 December 2016, Mr Alexander Fitzgerald made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Fitzgerald said that his employment had been terminated by the Kalka Palms Hotel T/A Pub (KPH) on 1 December 2016.

[2] On 7 December 2016, the Commission attempted to contact Mr Fitzgerald by telephone to confirm the details of a contact person at KPH to whom the Commission could send his application. The Commission also sent email correspondence to Mr Fitzgerald to confirm the details it required. On the same day, Mr Fitzgerald returned the Commission’s call and later sent two emails to the Commission providing the details requested.

[3] Due to an administrative error on the part of the Commission, Mr Fitzgerald’s application remained inactive from 7 December 2016 to 16 April 2018. During this period, there was no correspondence from Mr Fitzgerald with the Commission.

[4] On 16 April 2018, correspondence was sent to Mr Fitzgerald via email. The correspondence stated that some time had passed since Mr Fitzgerald had made his application on 4 December 2016 and his matter remained open but inactive. Mr Fitzgerald was asked to confirm whether he still intended to pursue his application. The Commission advised Mr Fitzgerald that if he failed to respond by close of business on 27 April 2018, his matter may be dismissed without further notice. The Commission did not receive a response to this correspondence.

[5] On 8 May 2018, correspondence was sent by the Associate to Deputy President Clancy regarding the status of the application. The correspondence was sent to both parties, including via email and post to Mr Fitzgerald.

[6] The letter addressed to Mr Fitzgerald advised:

“Due to an administrative error, your application did not progress through the usual course and you have not responded to the … Commission’s recent attempts to contact you. In addition, you have not been in contact with the Commission since early December 2016. It is therefore not clear if you are seeking to proceed with your application.”

[7] The letter addressed to KPH advised:

“The enclosed application for unfair dismissal was lodged by Mr Alexander Fitzgerald with [the Commission] on 4 December 2016.

Due to administrative errors, this application did not progress through the usual course and the file has been inactive until recently. The Commission has since attempted to contact Mr Fitzgerald but this has been without success. Please see the enclosed letter sent to Mr Fitzgerald on 13 April 2018. The Commission did not receive a response to this letter.”

[8] Both letters advised that Deputy President Clancy, Termination of Employment Panel Head, would conduct a telephone mention in the matter at 11.00am on 1 June 2018. The parties were advised that at the mention, the Deputy President intended to speak to them about the further conduct of the matter. A Notice of Listing was sent to the parties confirming the scheduling of the telephone mention. The correspondence was sent by email and express registered post and was confirmed to have been delivered to both Mr Fitzgerald and KPH on 14 May 2018.

[9] On 17 May 2018, the Associate to Deputy President Clancy discussed the application with KPH by telephone. KPH advised that Mr Fitzgerald is a patron of the hotel and said it was an uncomfortable situation as it believed that all issues relating to Mr Fitzgerald’s employment had been resolved.

[10] On 30 May 2018, an email was sent to Mr Fitzgerald requesting that he confirm his preferred contact number for the purpose of the telephone mention on 1 June 2018. The Commission did not receive a response to this correspondence.

[11] On 31 May 2018, the Commission attempted to contact Mr Fitzgerald by telephone regarding his preferred contact number for the purpose of the telephone mention, however the call could not be completed.

[12] On 1 June 2018, Deputy President Clancy conducted a telephone mention. Mr Fitzgerald could not be contacted for the mention. KPH made an oral application pursuant to s.399A(1)(a) of the Act that the matter be dismissed due to Mr Fitzgerald’s failure to attend the hearing relating to his application that day. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted KPH’s oral application.

[13] Following the mention, correspondence was sent to Mr Fitzgerald’s nominated email and postal addresses advising him of KPH’s s.399A application. Mr Fitzgerald was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 12 June 2018. The correspondence stated that if the Commission did not receive a response, Mr Fitzgerald’s application for relief for unfair dismissal would be dismissed. The correspondence was sent to Mr Fitzgerald by express post and was confirmed to have been delivered to him on 6 June 2018.

[14] To date, Mr Fitzgerald has not filed any material with the Commission in response to the s.399A application.

[15] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[17] As Mr Fitzgerald did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Commission has not had contact with Mr Fitzgerald since 7 December 2016 and the Commission’s recent attempts to contact him have been unsuccessful. Correspondence sent to Mr Fitzgerald on 8 May 2018 required his signature upon delivery and it was confirmed to have been delivered on 14 May 2018. Further, a letter outlining KPH’s s.399A application was sent to Mr Fitzgerald on 1 June 2018 and he has not submitted any response as to why the Commission should not dismiss his application. It can only be presumed that he does not intend to pursue his application.

[19] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Fitzgerald’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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